People v. Velez

77 A.D.2d 928, 432 N.Y.S.2d 1016, 1980 N.Y. App. Div. LEXIS 12710

Opinion

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered. Novémber 4, 1977, convicting him of criminal sale of a controlled substance in the first degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. The facts have been considered and are determined to have been estáblished. Prior to summation the trial court denied a defense request for a charge on criminal facilitation (Penal Law, § 115.05) as a lesser included offense of criminal sale of a controlled substance. We find, however, that on the facts of this case, criminal facilitation was a lesser included offense of the sale count (see People v Lewis, 68 AD2d 862; People v Sexton, 50 AD2d 842), and the trial court committed reversible error in refusing to so charge. Titone, J. P., Gibbons, Cohalan and Martuscello, JJ., concur.